State Of Washington, V Donald B. Martin, Jr. ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
July 24, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50807-9-II
Respondent,
v.
DONALD BRUCE MARTIN, JR., UNPUBLISHED OPINION
Appellant.
MELNICK, J. –– Donald Bruce Martin, Jr. appeals his two misdemeanor convictions for
violation of a domestic violence protection order. Martin argues ineffective assistance of counsel
based on defense counsel’s failure to raise a necessity defense. Martin also argues that the
sentencing court erred by imposing domestic violence perpetrator treatment as a condition of his
sentence. We affirm his convictions and sentence.
FACTS1
Martin and Stefani Staats married and had two children. On August 15, 2016, Staats
obtained a temporary domestic violence protection order. She requested the protection order
following an occurrence between Martin and Staats where the State charged Martin with assault
in the second degree–domestic violence, harassment–domestic violence, and four counts of assault
in the fourth degree–domestic violence. The order granted Staats temporary care, custody, and
control of the minor children and prohibited Martin from interfering with Staats’s physical and
1
The facts derive in part from the trial court’s findings of fact, which are all, except findings of
fact 10 and 22, unchallenged and therefore verities on appeal. State v. O’Neill, 148 Wash. 2d 564,
571, 62 P.3d 489 (2003).
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legal custody of the minor children. The order also prohibited Martin from contacting Staats or
the minor children.
The next day, on August 16, the trial court signed an amended protection order, ordering
law enforcement to assist Staats in obtaining possession of her vehicle and custody of the two
children.
Also on August 16, Pacific County Sheriff’s Deputy Jesse Eastham stopped Martin for
speeding. Martin was driving Staats’s vehicle and had both children in the car. Deputy Eastham
served both protection orders on Martin and explained that the orders required the surrender of the
minor children and the vehicle. Martin’s mother arrived on the scene. The deputy seized Staats’s
vehicle, but because the deputy did not have a writ of habeas corpus, he permitted Martin and the
children to leave with Martin’s mother. Three days later, Martin’s mother contacted law
enforcement to return the children.
For the above incident, the State charged Martin with two counts of custodial interference
in the first degree and three counts of “Violation of DV No-Contact” protection order, involving
Staats and the two children. Clerk’s Papers (CP) at 41.
The matter proceeded to a bench trial. During opening arguments, defense counsel argued
that Martin did not return the children to Staats because there was a May 2016 court order
prohibiting her from having contact with them. The State objected, arguing that Staats’s prior
crimes were not properly before the court. The trial court asked, “isn’t this the statutory
defense[?]” 1 Report of Proceedings (RP) at 19. The State responded, “there’s been no mention
that there’d be a statutory defense. A general denial was all that’s been put forward.” 1 RP at 19.
Defense counsel then stated, “The order . . . prohibited the mother from having any contact with
minor children. This order specifically goes to [Martin’s] state of mind. This is a specific intent
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crime.” 1 RP at 19. The trial court allowed defense counsel to continue with his opening argument
and then heard evidence.
Staats testified that prior to the incident between her and Martin, the State charged her with
rape of a child in the third degree and child molestation in the third degree involving a teenage
patient at Staats’s work. Staats testified that on May 4, 2016, the court entered a no contact order
restricting her from contact with minors. She testified that the trial court corrected the order the
next day to allow her to have contact with her own children and that Martin was aware of this
correction. In response, Martin testified that at the time he was stopped with the children in
August, the May 2016 no contact order still prohibited Staats from contact with all minors.
The trial court found Martin guilty of two counts of violation of a domestic violence
protection order involving the two children and that for each offense “domestic violence was pled
and proved.” CP at 60. The offenses were gross misdemeanors. RCW 26.50.110(1)(a). The trial
court found Martin not guilty of the other charges.
The sentencing court sentenced Martin to a total of 364 days with 180 days suspended and
24 months of probation. The sentencing court ordered Martin to obtain domestic violence
perpetrator treatment and to complete this treatment before having contact with his children. The
sentencing court also imposed a $100 domestic violence fee. Martin appealed.
ANALYSIS
Martin contends that defense counsel was ineffective for failing to argue the affirmative
defense of necessity and that the sentencing court erred in requiring domestic violence perpetrator
treatment as a condition of his sentence and in imposing a domestic violence fee. We disagree.
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I. INEFFECTIVE ASSISTANCE
To demonstrate ineffective assistance of counsel, Martin must show that counsel’s
performance fell below an objective standard of reasonableness. State v. McFarland, 127 Wash. 2d
322, 334, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). The record must show no legitimate strategic or tactical rationale for the
trial attorney’s decisions to establish deficient performance. McFarland, 127 Wash. 2d at 336.
Martin must also show there is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have differed. McFarland, 127 Wash. 2d at 334; Strickland, 466 U.S. at 687.
If Martin fails to establish either prong of the test, we need not inquire further. State v. Foster,
140 Wash. App. 266, 273, 166 P.3d 726 (2007). We must be “highly deferential” in evaluating a
challenged attorney’s performance. Strickland, 466 U.S. at 689. We strongly presume that the
attorney performed reasonably. State v. Brett, 126 Wash. 2d 136, 198, 892 P.2d 29 (1995).
A party is guilty of violating a protection order if (1) there is an order, (2) the person to be
restrained knows of the order, and (3) the person violates the order. RCW 26.50.110(1)(a).
Necessity is a common law defense to a charged offense. State v. White, 137 Wash. App. 227, 230-
31, 152 P.3d 364 (2007). A necessity defense is available “when circumstances cause the accused
to take unlawful action in order to avoid a greater injury.” State v. Jeffrey, 77 Wash. App. 222, 224,
889 P.2d 956 (1995). The necessity defense is not available, however, where “the compelling
circumstances have been brought about by the accused or where a legal alternative is available to
the accused.” State v. Diana, 24 Wash. App. 908, 912-13, 604 P.2d 1312 (1979).
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Based on the colloquy in our record between the State, the trial court, and defense counsel,
defense counsel knew of the necessity defense but instead chose to use Staats’s no contact order
to prove Martin lacked the intent to violate his own protection order. Defense counsel stated, “The
order . . . prohibited the mother from having any contact with minor children. This order
specifically goes to [Martin’s] state of mind. This is a specific intent crime.” 1 RP at 19.
Moreover, there was also evidence that Staats’s no contact order was amended the next day to
permit her to have contact with her children and that Martin was aware of this amendment. This
evidence would undermine a necessity defense.
Counsel’s decision to not allege a necessity defense was clearly tactical. Since the record
shows a tactical rationale for counsel’s decision, Martin cannot establish deficient performance.
Therefore, his ineffective assistance of counsel claim fails. Foster, 140 Wash. App. at 273.
II. DOMESTIC VIOLENCE PERPETRATOR TREATMENT AND DOMESTIC VIOLENCE FEE
Next, Martin contends that the trial court erred by imposing domestic violence perpetrator
treatment as a condition of his sentence. Generally, we review sentencing conditions for an abuse
of discretion. State v. Riley, 121 Wash. 2d 22, 37, 846 P.2d 1365 (1993). A trial court abuses its
discretion if its decision is manifestly unreasonable or is based on untenable grounds or reasons.
State v. Montgomery, 163 Wash. 2d 577, 597, 183 P.3d 267 (2008). Courts possess wide discretion
to impose sentences and conditions with “carrot-and-stick incentive[s]” to promote rehabilitation,
which is a central goal of misdemeanor sentencing. Harris v. Charles, 171 Wash. 2d 455, 459, 465,
256 P.3d 328 (2011)). Probation conditions attached to misdemeanors need only “‘bear a
reasonable relation to the defendant’s duty to make restitution or . . . tend to prevent the future
commission of crimes.’” State v. Deskins, 180 Wash. 2d 68, 77, 322 P.3d 780 (2014) (quoting State
v. Williams, 97 Wash. App. 257, 263, 983 P.2d 687 (1999)).
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Here, the sentencing court sentenced Martin to a total of 364 days with 180 days suspended
and 24 months of probation. As part of his sentence, the sentencing court ordered Martin to obtain
domestic violence perpetrator treatment. Because the protection order that Martin violated was
issued following an occurrence between Martin and Staats where Martin was charged with
domestic violence and because the information charging Martin with the offenses stated that he
violated a domestic violence protection order, and because the trial court specially found that with
each offense “domestic violence was pled and proved,” the sentencing court had tenable grounds
to order Martin to obtain domestic violence perpetrator treatment both for rehabilitation and to
prevent the future commission of crimes. CP at 60. Accordingly, the sentencing court did not
abuse its discretion when it imposed domestic violence perpetrator treatment as a condition of
Martin’s sentence.
Martin, in a cursory fashion, also contends the sentencing court erred by imposing a $100
domestic violence fee. Martin, however, fails to provide argument to support his contention and
fails to direct us to relevant parts of the record. See RAP 10.3(a)(6). Accordingly, we decline to
review this issue.
III. APPELLATE COSTS
Martin asks that we decline to impose appellate costs if the State prevails on appeal. If the
State makes a request for appellate costs, Martin may challenge that request before a commissioner
of this court under RAP 14.2.2
2
The State includes a sufficiency of the evidence argument in its response brief. However, Martin
does not list sufficiency of the evidence as an issue in his opening brief nor does he provide
argument that insufficient evidence supports his convictions. Therefore, we need not reach this
issue.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Bjorgen, J.
Lee, A.C.J.
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